Wong Wai Man v. Concord Express (Hong Kong) Ltd

DCEC 658/2019

[2021] HKDC 697

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION ACTION NO. 658 OF 2019

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DECISION

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INTRODUCTION

1.On 19 February 2021, this court handed down a Judgment by which, among other things, the applicant’s appeal against the Employees’ Compensation (Ordinary Assessment) Board (“the Board”) was dismissed.  He was awarded $14,940 as employees’ compensation, despite his solicitors’ submission at the trial that the amount of compensation should be assessed at $67,860.

2.Having taken into account the applicant’s failed appeal against the Board’s assessment, and the reduced amount of section 10A compensation[1], I made a cost order nisi that the respondent shall bear 30% of the costs of the applicant (including all costs reserved, if any), to be taxed if not agreed. 

3.By summons filed on 4 March 2021, the applicant seeks to vary the aforesaid costs order nisi, to the extent that the respondent shall bear all of the costs of the applicant.

AFFIRMATION IN SUPPORT

4.This application is supported by the 2^nd Affirmation of Ng Kwok Wai (the applicant’s solicitor), in which he mentioned the following matters:

(1)     This was in fact the second application made pursuant to the Employees’ Compensation Ordinance (Cap.282) (“the Ordinance”). The first application (“the 1^st EC Action”) was commenced by the applicant himself, but legal aid was subsequently granted to him.  However, upon legal advice that any judgment obtained might probably be “empty judgment”, the applicant decided to discontinue the 1^st EC Action. As a result, the applicant had paid $34,460.50 as common funds costs.

(2)     Upon further consideration, the applicant decided to commence the present action.  He instructed the same firm of solicitors (Messrs. W. K. To & Co.) without the assistance of legal aid. 

(3)     Even if the applicant did not appeal against the assessment of the Board, the costs incurred would not be substantially reduced, as he had to go through the whole procedure anyway.

(4)     The applicant’s solicitors had all along been negotiating with the Employees Compensation Assistance Fund Board (“the Fund Board”) with a view to reaching an early and amicable settlement, even though no agreement could be reached.  The applicant had no alternative but to proceed with this action.

(5)     The applicant had not done anything improper or unnecessary throughout the proceedings.

THE APPLICANT’S SUBMISSIONS

5.In Ms Chan’s written submissions, having set out the applicable legal principles, she submitted that:

(1)     there is no way for the applicant to recover any compensation from the respondent without pursuing these proceedings;

(2)     while the expert opinion of the applicant was not accepted by the court, there was no evidence that the applicant was dishonest nor that he had exaggerated his claim;

(3)     the costs incurred would not be substantially reduced even if no appeal against the Board’s assessment was made;

(4)     effort had been made to negotiate with the Fund Board but unfortunately no settlement could be reached; and

(5)     the applicant had not done anything improper throughout the proceedings.

6.It can be seen immediately that Ms Chan had not relied on the background about the 1^st EC Action.  This is a wise approach to take, because that is a totally irrelevant matter.

DISCUSSIONS

7.It is trite that cost is a matter within the discretion of the court. 

8.Order 62 rule 3(2) of the Rules of the District Court (Cap.336H) (“RDC”) provides that:

“If the Court in the exercise of its discretion sees fit to make any order as to the costs of or incidental to any proceedings (other than interlocutory proceedings), the Court shall, subject to this Order, order the costs to follow the event, except when it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs.”

9.Order 62 rule 5(1)(f) of the RDC further stipulates that:

“The Court in exercising its discretion as to costs shall, to such extent, if any, as may be appropriate in the circumstances, take into account — whether a party has succeeded on part of his case, even if he has not been wholly successful.”

10.As I have made clear in the Judgment, the reason why I have ordered the respondent to bear only 30% of the applicant’s costs was because I have taken into account the applicant’s failed appeal against the Board’s assessment as well as the reduction in his claim for section 10A compensation.  It was not because I took the view that the applicant was unreasonable or improper in commencing these proceedings, nor because I considered him dishonest.  Hence, whether the applicant’s section 18 appeal was supported by any expert evidence is neither here nor there.

11.Further, I must say I totally disagree with Ms Chan’s submission that the costs of these proceedings would not be substantially reduced even if the applicant did not appeal against the Board’s assessment:

(1)     If no section 18 appeal was made, no expert evidence would have been adduced;

(2)     It should be noted that there were two expert reports obtained, for the applicant’s expert had been directed by the court to prepare a supplemental report and explain why his assessment was different from that stated in Form 9;

(3)     The main area which the applicant’s solicitors had to persuade the court at the trial was on the section 18 appeal, without which the trial on assessment of damages would become much more straight-forward.  This can be seen from the applicant’s closing submissions.

12.At the risk of stating the obvious, the applicant’s negotiation with the Fund Board is totally irrelevant.

CONCLUSION

13.For the reasons of the aforesaid, the applicant’s application to vary the costs order nisi is dismissed, and the said order nisi is hereby made absolute.

COSTS

14.As the respondent is absent, I make no order as to the costs of this application.

Ms K Chan of W. K. To & Co. for the applicant

The respondent, unrepresented, absent